Prasanthan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938** ## **CRL.A.No. 2705 of 2008 ( )** **--------------------------(AGAINST THE JUDGMENT DATED 22-09-2008 IN SC 800/2004 of ADDL. SESSIONS COURT-II , MAVELIKKARA)** ## **APPELLANT/IST ACCUSED:** **---------------------------------------** **PRASANTHAN AGED 49 YEARS, S/O. VASU, PULIMTHARAYIL HOUSE, WARD V, PATHIYOOR, PANCHAYATH, PATHIYOOR VILLAGE.** **BY ADVS.SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL)** ## **RESPONDENT/COMPLAINANT & STATE:** **---------------------------------------------------------** **STATE OF KERALA REPRESENTING CIRCLE INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **R1 BY ADV. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-09-2016, ALONG WITH CRA. 1057/2014, CRA. 1351/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMG** Crl. Appeal No.2705/2008 ## **APPENDIX** ## **APPELLANT'S ANNEXURES** NIL ## RESPONDENT'S ANNEXURES ANNEXURE-A1TRUE COPY OF THE MEDICAL REPORT. ANNEXURE-A2TRUE COPY OF THE RULE No.766. ANNEXURE-A3TRUE COPY OF THE RULE No.779. True copy P.A. To Judge AMG ## **C.K. ABDUL REHIM, J. & ANIL K. NARENDRAN, J.** ------------------------------------------------- ## **Crl. Appeal Nos. 2705 OF 2008, 1057 & 1351 OF 2014** ------------------------------------------------- DATED THIS THE 29[th] DAY OF SEPTEMBER, 2016 ## **J U D G M E N T** ## Abdul Rehim, J: Accused No.1, 6 and 7 in S.C.No.800 of 2004 on the files of the Additional Sessions Court-II, Mavelikkara are the appellants in Criminal Appeal Nos.2705 of 2008, 1057 of 2014 and 1351 of 2014, respectively. Altogether 10 accused were charge sheeted before the trial court for offences punishable under Sections 143, 144, 147, 148 324, 326, 307 and 302 read with Section 149 of Indian Penal Code (IPC). 2. The trial court vide its judgment dated 22.09.2008 found that the appellant in Criminal Appeal No.2705 of 2008, who is the 1[st] accused is guilty of offence under Section 143, 147, 148, 324, 326 and 302 read with Section 149 of IPC. He was not found guilty under Section 307 read with Section 149 of IPC. He was sentenced to undergo **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -2- rigorous imprisonment for three months under Section 143 of IPC. and rigorous imprisonment for six months each under Sections 144, 147 and 148 of IPC. He was sentenced to undergo rigorous imprisonment for two years under Section 324 read with Section 149 of IPC and rigorous imprisonment for three years and to pay a fine of Rs.3,000/and in default to undergo rigorous imprisonment for six months under Section 326 read with Section 149 of IPC. He was sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- and in default to undergo rigorous imprisonment for three years under Section 302 read with Section 149 of IPC.. 3. The trial court convicted Accused Nos.4,6, and 7 for offences under Sections 143, 144, 147, 148, 324, 326 read with Section 149 of IPC. They were not found guilty under Sections 307 and 302 read with Section 149 of IPC. They were sentenced to undergo rigorous imprisonment of 3 months each under Section 143 IPC and rigorous imprisonment for six months each under sections 144, 147 **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -3- and 148 IPC and to undergo rigorous imprisonment for two years each under Section 324 read with Section 149 IPC and rigorous imprisonment for four years each under Section 326 read with Section 149 IPC and to pay a fine of Rs.4,000/-each and in default to undergo rigorous imprisonment for one year under that section. Accused Nos.5,8 and 9 were found not guilty of the offences alleged and they were acquitted. Accused No.10 died during the trial. Accused Nos.2,3 were absconding and case against them stands split up. 4. Against the conviction and sentence imposed through judgment dt: 22.09.2008, the 1[st] accused had preferred Criminal Appeal No.2705 of 2008, accused Nos. 4 and 6 have jointly preferred Criminal Appeal No.2187 of 2008 and the 7[th] accused had preferred Criminal Appeal No.2253 of 2008, before this Court. When the above said appeals came up for consideration before a Division Bench of this Court on 19.02.2014, this Court directed the Registry to initiate suo moto revisions against the conviction and **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -4- sentence imposed with respect to accused Nos.4, 6 and 7, who were appellants in Criminal Appeal Nos.2187 of 2008 and 2253 of 2008, on the basis of a prima facie finding that the acquittal of those accused under Section 302 read with Section 149 of IPC was not legal and proper. This Court expressed the view that, there is no legally convincing explanations for the trial court to have discriminated the 1[st] accused alone in convicting under Section 302 read with Section 149 of IPC. 5. Consequently, this Court had disposed of Criminal Appeal Nos.2187 of 2008 and 2253 of 2008 along with Criminal R.C. (suo moto) Nos.1, 2 and 3 of 2014, through a judgment dated 20.02.2014. This Court found that the acquittal of accused Nos.4, 6 and 7 for offence under Section 302 read with Section 149 of IPC. requires reconsideration by the trial court. Therefore the trial court was directed to have an independent appreciation based on the evidence already available on record and to pass fresh judgment after hearing the prosecution as well as the **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -5- counsel appearing for accused Nos.4, 6 and 7. However, this Court made it clear that the said two Criminal Appeals were disposed of without entering on merits. Liberty of the appellants therein to approach this court again challenging the conviction and sentence already passed against them, was reserved. This court in the said judgment dated 19.02.2014 had observed that, Criminal Appeal No.2705 of 2008 preferred by the 1[st] accused shall be kept pending, awaiting fresh disposal of the matter by the trial court. This Court in the said judgment further observed that accused Nos.4,6 and 7 who were continuing on bail shall be permitted to continue on bail till a final judgment is passed by the trial court on the basis of the remand. 6. After the remand as mentioned above, the trial court considered the matter and passed a fresh judgment dated 09.07.2014. The accused Nos.4, 6 and 7 were also found guilty of offence under Section 302 read with Section 149 of IPC; and each of them were sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- each. It **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -6- is aggrieved by the conviction and sentence imposed in the judgments passed by the trial court dated 22.09.2008 and 09.07.2014, that the Accused Nos:6 and 7 have preferred Criminal Appeals Nos.1057 of 2014 and 1351 of 2014 respectively. All the above three appeals are now considered together. It is pertinent to note that accused No.4 has not chosen to file any appeal against the conviction and sentence imposed against him. 7. Prosecution case is summarized as follows; On 03.08.2002, PW1 along with his brothers and their wives manhandled accused Nos.2 and 3 and in a case registered with respect to the said incident, PW1, his younger brother Jayesh and the deceased Sreekumar were remanded to judicial custody and they were in Central Jail, Thiruvananthapuram. On 11.09.2002 they were released on bail. On that day Accused Nos.1 to 10 who were on enimical terms towards PW1 and his family members, in prosecution of their common object of causing death of PW1 to PW3 and deceased Sreekumar and also in prosecution of **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -7- their common object of causing hurt on those persons, formed themselves into an unlawful assembly at about 9.00 pm, being armed with deadly weapons like chopper, sword, iron rods, iron bar, nanjak etc. came to the spot of occurrence and with the knowledge that their acts would be sufficient in the ordinary course of nature to cause death of the deceased sreekumar, the 1[st] accused uttered loudly to kill them by cutting and caused a cut injury on the deceased with a deadly weapon of MO5 sword on the left side of his head and when the deceased fell down the 2[nd] accused cut him with MO6 chopper on the right side of his head and on the right back side of his head, resulting in fracture of skull bone. Accused No.3 beat him with an iron rod on his head above the right eye brow. Accused No.5 beat him with an iron bar below his right leg. Accused No.6 beat him with an iron rod on his left wrist. Accused No.9 beat him with an iron rod left cheek, twice. Accused No.10 beat him with an iron rod on the left wrist. When PW2 interfered obstructing the attack against the deceased, Accused No.2 inflicted cut **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -8- injuries with a chopper on his left shoulder, and on the left upper arm causing fracture of bone and accused No.4 had cut PW2 with a sword above his right eye brow. When PW1 interfered, the 1[st] accused cut him with a sword on the left side of his head and accused No.4 cut him with a sword on his head above the right ear. When PW3 interfered and obstructed the accused persons, accused No.7 beat her with MO8 nanjak on the right shoulder and on her back, three times. Accused No.3 beat her with an iron rod on her left forearm causing fracture of the bone and accused No.3 beat PW2 with iron rod twice on his back. Accused No.6 also beat him with iron rod on the right shoulder and right forearm causing fracture of the bone on the right hand. Accused No.1 also cut PW2 with a sword on his left foot, above the left foot, below knee and above left knee causing injuries. Accused No.7 also hit PW2 with MO8 nanjak on the right foot and Accused No.8 beat him with iron road on his back, twice. Accused No.9 beat PW3 with an iron rod on the left side of the neck,head and right upper arm and **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -9- accused No.10 beat PW3 with a dangerous iron rod on her right cheek. When PW1 attempted to escape by running, the 1[st] accused stabbed him with a dangerous sword above his left knee and accused No. 4 cut him with sword on right palm. Accused No.3 also beat PW1 with iron rod on his left shoulder and right forearm causing fracture of bone on the right hand. Accused No.7 also hit PW1 with MO8 nanjak on his right rib, back and right cheek. All the accused thereby attempted to kill PW1 and caused simple and grievous injuries on PW2 and PW3. 8. The prosecution had examined PW1 to PW23 and marked Exts.P1 to P37 series documents. MO1 to MO16 material objects were identified. From the side of the defence, DW1 to DW3 were examined and D1 to D15 series documents were marked. Police investigation with respect to the incident was initiated when PW1 gave Ext.P1 First Information Statement, which was reduced to writing by PW20 at 2.30 a.m. on 12.9.2002 at the Medical College Hospital, Alappuzha. PW23, Circle Inspector of Police, **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -10- Kayamkulam took over the investigation on 12.9.2002. He conducted examination on the dead body of the deceased and prepared Ext.P15 inquest report between 9.30 a.m. and 11.30 a.m. on the said date. He had visited the scene of occurrence on the same date and prepared Ext.P16 scene mahazar at about 2 p.m. Accused Nos.1, 4 and 7 were arrested on 7.10.2002 at about 8.30 p.m. MO8 'Nanjak' was seized from the body of accused No.7. On the basis of Ext.P18(a) disclosure statement of the 1[st] accused, MO5 sword was recovered from a place led by the 1[st] accused on 8.10.2002 by preparing Ext.P18 mahazar. So also based on Ext.P19(a) disclosure statement given by accused No.4, MO6 sword was recovered from a place led by the said accused by preparing Ext.P19 mahazar. Accused Nos.2, 3 and 5 were arrested on 8.10.2002 at about 3 p.m. Based on Ext.P20(a) disclosure statement made by accused No.3, one among the iron rods marked as MO9 series was recovered by preparing Ext.P20 mahazar. Likewise, based on Ext.P21 (a) disclosure statement made by accused No.5, another **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -11- iron rod out of MO9 series was recovered by preparing Ext.P21 mahazar. MO7 chopper was recovered based on Ext.P2(a) disclosure statement allegedly made by the 2[nd] accused, by preparing Ext.P22 mahazar. On 21.10.2002, the Investigating Officer had arrested accused Nos.6, 8, 9 and 10 at about 2 p.m. On 21.10.2002, as per Ext.P33(a) disclosure statement of accused No.10, MO16 iron rod (also marked under MO9 series) was recovered by preparing Ext.P33 mahazar. PW23 had completed the investigation and laid the charge sheet in the case. 9. Autopsy on the dead body of the deceased Sreekumar was conducted by PW5, the Assistant Professor and Deputy Police Surgeon, Medical College, Alappuzha. Ext.P4 is the Post Mortem Certificate issued by him. It reveals that the deceased sustained the following antemortem injuries; - “1. Lacerated wound on front of right knee 0.8x0.3cm vertical, muscle deep. 2. Lacerated wound on front of right leg 1x0.3cm, vertical, bone deep, 16 cm below knee. **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -12- 3. Abraded contusion on front of left forearm 8x1cm tranverse, 5cm above wrist. 4. Abraded contusion on back of left little finger 1x1cm, 2cm proximal to the distal end. 5. Incised wound on left cheek 2x0.6cm vertical, bone deep. 6. Abraded contusion on right cheek 6x1.5 cm, tranverse, the outer end at tragus. 7. Abraded contusion on front of right side of head over an area of 4x2cm vertical, 3cm above eye brow, 0.5cm outer to mid line. 8. Lacerated wound left side of front of head 3x0.8cm, vertical 4.5cm above eye brow 3.5 cm outer to midline bone deep, scalp contusion underneath over an area of 4x4cm. 9. Lacerated wound on right temporal region 6.5cm, front to back direction front end 8cm above middle of eye brow, back end 6cm above top of right ear, bone deep, scalp contusion underneath over an area of 6x6cm. 10. Incised would on right post auricular region 2x1 cm, tranverse, 3cm back to pinna bone deep. 11. Incised wound on back of head, 4cmx1cm transverse, front and 1cm back to injury No.10, bone deep, scalp contusion underneath over a total area of 8x8 cm. Skull intact, thick, subdural and subarachnoid hemorrhages seen on both cerebral and cerebellar hemispheres. The brain congested and marked flattening of syri and grooving of sulci seen. The lateral ventricles contained blood stained fluid.” **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -13- PW5 when examined before the trial Court reiterated about the injuries sustained and opined that, injury No.11 was the fatal injury which was sufficient in the ordinary course to cause death. He further deposed that, the injury No.8 can be caused with a weapon like MO7 chopper and injury No.11 can be caused with a weapon like MO5 sword (sword stick). In the cross examination he conceded that, except injury No.11 other injuries were not fatal in the ordinary course of nature. He also conceded that it is possible to inflict the said injury while the injured was lying and the assailant was standing. But he has not denied the suggestion put that it is mostly unlikely, because it is difficult to inflict a cut injury on a person lying in the prone position without bending posture of the assailant. 10. PW1 to PW3 are persons sustained injuries in the alleged incident. They were taken to the Government Hospital, Kayamkulam for treatment, from where they were referred to Medical College Hospital, Alappuzha. PW1 to PW3 were examined at the Government Hospital, **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -14- Kayamkulam by PW15 Doctor, who had issued Exts.P23, P24 and P25 'Accident Register-cum-Wound Certificates.' It is evident from Ext.P23 and from the testimony of PW15 that PW1 had sustained the following injuries; - “1. Incised wound 3x1/2x1/2cm on the forehead. 2. Incised wound 2x1/2x1/2cm on the scalp right side and 3. fracture on the left hand.” It has come out in evidence from Ext.P24 and from the testimony of PW15 that PW2 had sustained the following injuries; - “1. Incised wound 6x2x1cm on the left shoulder. 2. Compound fracture of left upper arm. 3. Compound fracture of forearm. 4. Incised wound 1x1/2x1/2cm on the left leg with suspected fracture.” Likewise, as evident from Ext.P25 and from the testimony of PW15, PW3 had sustained the following injury; “Compound fracture on the left forearm.” All the above said three witnesses were examined by PW15 on 11.9.2002 at 9.30 p.m. History and the alleged cause of **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -15- injury mentioned in Exts.P23, P24 and P25 are that, “cut injuries inflicted jointly by '7' persons using sword sticks and dagger.” PW1 to PW3 were subsequently admitted at the Medical College Hospital, Alappuzha on the same day and they were treated as inpatient for various periods. Exts.P29, P30 and P31 are the 'Discharge Certificates' issued with respect to treatments conducted on the said witnesses at the Medical College Hospital, Alappuzha. PW22 is the Doctor who had issued those certificates. Ext.P29 would indicate that PW1 was treated as inpatient from 11.9.2002 till 25.9.2002. It is noted in Ext.P29 that PW1 had sustained fracture of proximal phalanx of the 4[th] and 5[th] fingers left side. Ext.P30 Discharge Certificate would indicate that PW2 was treated from 11.9.2002 till 5.10.2002 and that he had sustained fracture to left humerus with cut of radial nerve, fracture of left clavicle, fracture to right forearm and fracture of both bones of the left leg. So also, Ext.P31 would indicate that PW3 was treated at the Medical College Hospital from 11.9.2002 till **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -16- 5.10.2002 and she had sustained fracture to both bones on the left forearm and fracture of lateral end of the right clavicle. From the medical evidence as discussed above, it is evident that the deceased Sreekumar died of fatal injury sustained to him at the spot of occurrence on 11.9.2002 at 9.30 p.m. and that PWs 1 to 3 had also sustained simple and grievous injuries in the said incident. 11. Apart from PW1 to PW3 who were injured in the incident, the prosecution had examined PW4, PW6 & PW7 as independent ocular witnesses to prove the occurrence. But all of them have not supported the prosecution. According to PW4, he had only witnessed PW2 & PW3 lying injured on the side of the public road on the western side of the grill of his telephone booth. But he denied of having seen any of the accused in the place of occurrence. PW6 & PW7 are husband and wife. They admitted that both of them came nearby to the waiting shed which is situated near to the spot of occurrence. According to them, they have seen one husband and wife waiting in front of the STD Booth and **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -17- 2 persons came there on a Scooter and stopped there and talked with the husband and wife. Both the said witnesses deposed that, one of the persons who came in the Scooter had gone to the STD Booth along with the lady who was standing there and at that moment about 7 to 8 persons came running to the spot with weapons in their hands and attacked the persons standing there. According to PW6 & PW7 they ran away from the spot due to fear. Eventhough PW6 had identified PW2 & PW3 as persons who were seen standing in front of the STD Booth, they have not identified any of the accused nor had supported the version of prosecution with respect to the inflicting of injuries on the deceased as well as on PW1 to PW3 by the accused. Therefore the direct evidence in support of the prosecution case is only the testimony of the injured persons, PW1 to PW3. While evaluating the question as to whether the prosecution was successful in proving the guilt of the accused, the crucial aspect is as to how far the testimony of those witnesses can be believed. **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -18- 12. Investigation of the case was initiated based on Ext.P1 F.I. Statement given by PW1, which was recorded by PW20. It is on the basis of the said statement that PW20 had registered Ext.P1 (b) F.I.R. In Ext.P1 statement the version of PW1 is that, while the deceased and PW1 were standing together with PW2 & PW3, the 1[st] accused came running to the spot with a sword stick in his hand shouting that all of them may be cut and killed and accused Nos.2, 3 & 4 followed him, with a chopper in the hand of the 2[nd] accused, iron rod in the hand of 3[rd] accused and sword stick in the hand of 4[th] accused. When they reached the spot, accused No.1 inflicted a cut injury on the head of the deceased with the sword stick and the deceased fell down. When PW2 interfered, the 2[nd] accused inflicted cut injuries on his left shoulder and on his left hand. At that time the deceased Sreekumar was beaten by accused No.4 and 5 and others who can be identified at sight, with iron rod, on his head and on different other parts of his body. It is stated that, when PW1 interfered the accused No.1 inflicted a cut **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -19- injury on his head and accused No.4 attacked PW1 with a sword stick causing injury on the right side of his head. When PW3 cried aloud a person who was carrying a 'Nanjak' had beaten her two three times on the back. At that time accused No.4 had also beaten her on the left hand with an iron rod. When PW3 cried aloud accused No.3, 5 and others jointly beaten PW2 with iron rods and accused No.4 inflicted cut injury on the head of PW2 with a sword stick and PW2 fell down due to the injury sustained. According to PW1 he ran away from the spot towards the STD Booth of PW4 calling out for rescue and at that time the accused No.1 & 4 followed him and inflicted three-four cut injuries on his back side and the 1[st] accused had stabbed him above the knee on the left leg with the sword stick. It is stated by PW1 that when people gathered there the 1[st] accused threatened that if anybody approaches they will be killed and the accused Nos.1 to 4, along with 6 other persons had left the place taking the weapons which they were carrying. Thereafter persons gathered there brought a **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -20- car in which PW1 to PW3 along with the deceased were taken to the hospital. In Ext.P1 it is mentioned that the accused had attacked the deceased and PW1 to PW3 because of their enmity due to the case pending before the court between the two families. It is mentioned in Ext.P1 that accused No.1 to 3 are the children of the uncle (Velyachan) of PW1 and that accused No.4 is a friend of accused Nos.1 to 3. 13. As mentioned above, version contained in Ext.P1 statement is that, the deceased as well as PW1 to PW3 were attacked by accused Nos.1 to 4 and 6 others who can be identified at sight. But, while examined before the court, PW1 deposed that he had previous acquaintance with all the accused. Testimony of PW1 is that, the incident happened when he along with the deceased were standing at the scene, after making a telephone call from the STD Booth situated at the junction. While narrating about the overt acts, PW1 deposed that accused No.2 had inflicted a cut injury on the neck of the deceased with MO7 chopper, **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -21- which version is not there in Ext.P1 statement. There is no corresponding injury noted on the neck of the deceased. In the testimony of PW1 it is mentioned that the 4[th] accused had inflicted a stab injury on his left leg, above the knee, with a sword stick. But in Ext.P1 statement the version of PW1 is that, such an injury was caused by the 1[st] accused while the PW1 had entered the STD Booth. In the chief examination PW1 deposed that the remaining 6 accused had attacked them with sword stick and nanjak. But he stated that he is not remembering exactly what they have done. During cross-examination he stated that he does not know the overt acts committed by accused No.6 to 10 with exact details. To a specific question put in the cross-examination, PW1 answered that the accused Nos.1 to 4 came to the spot first and the remaining accused came behind them. According to PW1, he had mentioned the names of the accused to the Doctor who examined them at the Government Hospital. But he had denied that he had mentioned to the Doctor that 7 persons had attacked them **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -22- with sword stick and dagger. Against the version contained in Ext.P1 statement, PW1 deposed that nobody has sustained any injury either on the verandha or inside the STD Booth. He denied of being attacked while he was running to the STD Booth or while inside the Booth. According to him he had gone to the STD Booth after the incident only to bring water for the deceased. It has come out in evidence that accused No.10 is the father of accused No.1 to 3. Despite the fact that accused No.1 to 3 were described in Ext.P1 as children of his uncle, PW1 while examined before the court denied of having any relationship with accused No.10. He categorically denied that PW2 and accused No.10 are brothers. While cross-examined, PW1 denied of having given any such statement as mentioned in Ext.P1. In cross-examination PW1 admitted that he knows accused No.10 and that he had seen accused No.10 at the time of the incident itself. He also conceded that accused No.10 is his neighbour. While examined in cross, PW1 denied of having sustained any cut injury on the back side **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -23- with the sword stick. He had denied of having given any such statement to the police. He deposed that if any such statement if contained in Ext.P1 it is not correct. He further deposed that the accused Nos.7 & 9 were known to him as persons hailing from the same locality. PW1 was examined before the court initially on 28-01-2008. At that time he has not identified any of the weapons allegedly used by the accused. But after about 6 months he was recalled and examined again on 23-06-2008. At that time PW1 had identified MO5 to MO9 series weapons. He specifically identified MO6 as the sword stick seen in the hands of the 1[st] accused and MO5 as the sword stick seen in the possession of the 4[th] accused. According to him MO7 chopper was in the possession of 2[nd] accused and MO8 nanjak was in the hands of the 5[th] accused. MO9 series iron rods were identified to be weapons held by accused Nos.3, 6 & 7. He has not identified specifically the weapon which was allegedly carried by accused Nos.8, 9 & 10. Further, he conceded that he cannot identify which among the iron **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -24- rodes in MO9 series was in the hands of accused No.3. During further cross examination PW1 deposed that nanjak was in the hands of accused No.7. 14. While evaluating credibility regarding testimony of PW1, it is to be noticed that, while giving Ext.P1 statement his version was that the attack was by accused Nos.1 to 4 and 6 other persons who can be identified at sight. But it has come out in evidence that accused No.10 is the father of accused No.1 to 3. PW1 had described him as uncle (velyachan) in Ext.P1 statement. While examined he conceded that accused No.10 is a neighbour. There is evidence on record to the effect that accused No.10 and his children (accused No.1 to 3) are residing very close to the house of PW1 to PW3. Testimony of PW2 would reveal that there existed enmity between the accused and him because PW1 to PW3 had purchased a property situated in front of the property of the accused. He deposed that the accused has to travel through the property which was purchased by PW1 to PW3. Therefore it is evident that the accused No.10 **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -25- is a person known very well to PW1, and PW1 could have identified accused No.10 at the time of incident itself, if the said accused was actually present there. So also, while examined before the court PW1 conceded that, accused Nos.7 & 9 are persons hailing from the same locality. PW2 when examined before the court conceded that the property of accused Nos.7 & 9 is situated at a distance of 10.50 meters from the property which was purchased by PW1 to PW3. Therefore the evidence on record would reveal that accused Nos.7 & 9 were also persons known to PW1 could have been identified at the time of occurrence itself. But while giving the first information statement, PW1 had not mentioned the name of accused Nos.7, 9 & 10. This aspect need to be considered in the light of endorsements contained in Ext.P23, P24 & P25 wound certificates, in which the alleged history and the cause of the injury is mentioned specifically as attack made by 7 persons. 15. Veracity and genuineness of the version of PW1 with respect to the incident need to be assessed in **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -26- comparison with the testimony of PW2 and PW3. It is to be noted that, the version testified by PW2 in his crossexamination is that, at the time when the accused had inflicted the injuries on the deceased as well as on PW2, PW1 & PW3 were inside the STD Booth. According to PW2 it is on hearing the sound of attacking the deceased and PW2, that PW1 & PW3 came out of the Booth. It is categorically deposed that PW2 sustained the injuries about 10-15 minutes after PW1 and the deceased came to the spot. During that time PW1 and PW3 were speaking over telephone at the Booth. According to PW2, PW1 sustained the first injury at a spot near to the STD Booth at the edge of the road. In this regard, testimony of PW3 is to the effect that she had not witnessed the deceased sustaining any cut injury. According to her, when she came out of the Booth, she saw the deceased being beaten with the iron rod. It is on hearing cry of PW2 that she came out of the STD Booth. She stated that she came out of the booth behind PW1 and PW1 sustained injury while he came out of **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -27- the Booth at a spot situated on the road, slightly on the western side. She deposed that, on sustaining a cut injury PW1 ran into the Booth and closed its door and at that time the accused No.1 inflicted stab injury on PW1 through the grill gate of the STD Booth. Evidently, there are clear contradictions with respect to the sequence of the incidents narrated by PW1 with that of the version of PW2 and PW3. When the specific case of PW1 is that the incident took place while he was standing along with the deceased, PW2 and PW3, testimony of PW2 and PW3 are to the effect that PW1 and PW3 were inside the Booth while the deceased as well as PW2 sustained the injuries. So also there is clear contradiction with respect to the spot where PW1 had sustained the injuries. According to PW2 and PW3, PW1 sustained the first cut injury while he was coming out of the STD Booth at a place near to the road margin. Whereas version of PW1 is that he was with the deceased and PW2, when he sustained the cut injuries. When PW1 denies of having ran into the STD Booth after sustaining the first **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -28- injury, specific case of PW2 and PW3 is that, PW1 sought rescue inside the STD Booth and the accused inflicted injuries even when PW1 was inside the Booth. Specific allegation is that accused No.1 had inflicted a stab injury on the leg of PW1 with a sword stick. But PW1 had denied of having sustained any such injury. There is also no supporting medical evidence to the effect that PW1 had sustained any injury on his leg. 16. It has come out in evidence that PW1 to PW3 as well as the deceased were taken to the Government Hospital, Kayamkulam in a car belonging to PW19, which was driven by him. Testimony of PW19 is to the effect that, after the incident PW1 came to his house and asked to bring the car stating that he along with deceased, PW2 and PW3 were attacked by accused No.1 and his brothers. PW19 further deposed that, while travelling in the car PW1 told that accused No.1 and 2 and his brothers along with accused No.10 and certain others have attacked them. But such a version is not supported by the testimony of PW1 to **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -29- PW3. According to PW1 the deceased and the injured persons were taken to the Hospital in a car fetched by somebody who came to the spot. PW1 has not mentioned that it is in the car of PW19, fetched by him that they were taken to the Hospital. Even though PW2 had deposed that they were taken to the hospital in a car belonging to a person named Prasad, he never said that PW1 went to Prasad's house to fetch the car. When the alleged hearsay evidence testified by PW19 is not supported by the testimony of its maker, it cannot be accepted with any credence. More over, the specific version of PW19 is that PW1 had mentioned the name of accused No.10 also as an assailant in the group. But in Ext.P1 statement PW1 had not mentioned the name of accused No.10. Considering the material contradictions and omissions in the evidence of PW1, it has to be inferred that PW1 is not testifying the true genesis and sequence of the incident, and that he had made deliberate attempts to implicate persons who were not really participated in the crime. Evidently, the case was not **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -30- registered and investigated based on a true version of the occurrence, but only based on a distorted version contained in Ext.P1 statement. 17. Learned Senior Counsel appearing for the appellants in Crl. Appeal Nos.2705/2008 and 1057/2014 contended that, if the First Information Report is based on fabricated version, the entire prosecution case would collapse. He contended that the omission to mention any important and crucial facts in the F.I.R would affect every probabilities of the case and such omissions are relevant factors in judging veracity of the prosecution case. In support of the above contentions he placed reliance on the decisions in **Marudanal Augusti V. State of Kerala ((1980) 4 SCC 425)** and in **Ram Kumar Pande V. State of M.P. ((1975) 3 SCC 815)** . According to learned Senior Counsel, if there is any shake in the foundation of the F.I.R upon which the prosecution case is built up, the whole structure will collapse. In this regard a decision of this court in **Ali @ Aali V. State of Kerala (ILR 2015** **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -31- **(4) Ker. 168)** is also relied upon. It is further argued that when the origin of the F.I.R itself is not genuine, the evidence on record adduced through oral testimony of the injured witnesses cannot be relied upon. In this regard reliance is placed on a decision of the hon'ble Supreme Court in **M.P. Poddar (H.U.F.) and another V. Appropriate Authority, Income Tax and others (AIR 2003 SC 4398)** . It is pointed out that the hon'ble apex Court in the decision in **Harchand Singh and another V. State of Haryana (AIR 1974 SC 344)** held that, when there are two set of evidence which are contradictory in nature, conviction cannot be based on such evidence and in such circumstances the accused is entitled to benefit of the situation. When evaluated based on the legal precedents remaining settled as mentioned above, this court is of the opinion that the basis upon which the investigation was initiated and continued, which is the version contained in Ext.P1 statement, was proved to be not genuine on many material aspects. As such, the very fabric of the case was **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -32- set up by the prosecution based on a version which is not true and correct and to a great extent fabricated. 18. Learned Public Prosecutor raised vehement contentions that, even if there are some contradictions in the oral testimony of PW1, the version of PW2 & PW3 had corroborated about genesis of the incident and that the minor contradictions in their testimony need to be brushed aside. It is contended that PW1 to PW3 are not chance witnesses but they are persons who sustained injuries in the incident. He contended that the testimony of injured witnesses has its own relevancy and efficacy as they have sustained injuries at the time and place of the occurrence. The fact that they are injured witnesses lend support to their testimony that they were present at the time of occurrence. It is contended that the testimony of injured witnesses need to be accorded with special status in law, because such witnesses comes with a built-in guarantee of their presence at the scene of the crime and is unlikely to spare actual assailants in order to falsely implicate some **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -33- one. In this regard he had placed reliance on a decision of the hon'ble Supreme Court in **Bhajan Singh @ Harbhajan Singh and others V. State of Haryana (2011) 7 SCC 421** . But, while applying the above said principle on the facts of the case at hand, we notice that, genuineness and credibility of the version put forth by the injured witnesses was sufficiently shaken by the defence, while examined before the court. Evidently an attempt on the side of the injured witness to implicate more persons as accused as well as an attempt to depose about the overt acts, which they have not actually witnessed, is explicit from their testimony. Further there is more than sufficient contradictions with respect to the genesis and sequence of the incidents and also with respect to the injuries inflicted. Under such circumstances, merely because PW1 to PW3 are persons who sustained injuries in the incident and merely because their presence at the scene of the crime is guaranteed, we are not persuaded to believe their version to hold guilt on accused Nos.1, 6 & 7, who are appellants in **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -34- the above appeals. 19. Learned Public Prosecutor contended that, testimony of PW1 to PW3 need not be evaluated with arithmetical perfection. According to him, in cases where many persons sustained injuries, the witnesses cannot be expected to be such perfectionists to give an exact version of the occurrence. In this regard he placed reliance on the decision in **Bhajan Sing's case** (cited supra). But we find that the contractions are basically on the material aspects with respect to the place of occurrence, sequence of occurrence, evidence regarding witnessing of each overt acts by each of the witnesses etc. Further, as already observed, genuineness and credibility of the prosecution version was considerably lost from the very base when the investigation was started relying on Ext.P1 F.I. Statement. Hence this court is not inclined to sustain the conviction of the appellants solely based on the oral evidence of PW1 to PW3. **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -35- 20. Next question to be considered is with respect to the recovery of the weapons based on the disclosure statements given by the accused. It has come out in evidence that, in pursuance to Ext.P18(a) disclosure statement allegedly given by the 1[st] accused, MO5 sword was recovered on 8.10.2007 by preparing Ext.P18 mahazar. PW12 is the attestor to Ext.P18 mahazar. He identified his signature in Ext.P18 mahazar. But to a specific question put by the Prosecutor as to whether he had witnessed the 1[st] accused taking and handing over the sword to the police authorities, he answered on the negative. According to him, Ext.P18 was signed at the road situated in front of the house of the 1[st] accused. But PW8 had identified MO5 sword stick. As per Ext.P18 mahazer the recovery of MO5 was on the basis of a statement given by the 1[st] accused that if he is taken he will show the sword and the place where it is kept. According to PW.23, MO5 was recovered from a place shown by the 1[st] accused, as led by him. As per Ext.P18 mahazer the sword was recovered from the roof **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -36- of the house of the 1[st] accused, kept beneath the tiles. But in cross-examination of PW12 it is mentioned that the house of the 1[st] accused is a concrete building. To a further question as to there is any tile roofed portion in the house, he answered that he don't know exactly. However, evidence of PW12 when considered as a whole, it is clear that he has not witnessed the recovery of MO5 from the house of the 1[st] accused. Therefore question arises as to whether evidence regarding recovery of MO5 can be given credence, solely based on testimony of PW23. There again the crucial aspect which need to be considered is that, according to testimony of PW2 the 1[st] accused was using MO6 sword stick, which according to him he could specifically identify. He had also deposed that MO5 is a sword stick with a broken tip. In the testimony of PW.1 also it is specifically mentioned that MO.6 is the sword stick which was found in the possession of the 1[st] accused at the time of occurrence. There is no evidence let in through any ocular witnesses that MO5 sword stick was used by the 1[st] accused in committing the **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -37- offence. For the above said reasons the recovery of MO5 sword stick based on Ext.P18(a) alleged disclosure made by the 1[st] accused cannot be given any weightage and no conviction can be sustained solely based on the said recovery. 21. Prosecution case is that, MO6 sword stick was recovered based on Ext.P19(a) disclosure allegedly made by the 4[th] accused, by preparing Ext.P19 mahazar. PW12 is the witness for the said recovery also. But the said witness had not specifically mentioned that MO6 was shown to CW23 by the 4[th] accused. Nor that the 4[th] accused had taken the sword stick from the place where it was kept. According to Ext.P19 recovery mahazar MO.6 sword stick was recovered from a compound near to a temple, out of a heap of sand kept for construction purposes. But in crossexamination PW.12 denied of having gone to the temple compound at the time of recovery. Further, as already mentioned in the foregoing paragraphs, evidence of PW1 and PW2 is to the effect that MO6 is the sword stick used by **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -38- the 1[st] accused and not by the 4[th] accused. Therefore the recovery of MO6 based on the alleged disclosure of accused No.4 cannot be considered as genuine, solely based on the oral testimony of PW23. 22. MO7 chopper was discovered based on Ext.P22(a) disclosure statement allegedly given by the 2[nd] accused, by preparing Ext.P22 mahazar. PW.14 is the witness cited as attestor of Ext.P22 mahazar. But PW.14 has not supported the prosecution. According to Ext.P22 mahazar it is on the basis of disclosure made by the 2[nd] accused, Prabhakaran that MO7 chopper was recovered. But when cross-examined by the prosecution specific question put to PW14 is that whether he had witnessed the police recovering MO7 chopper from the house at the instance of accused No.3, Prasad. According to Ext.P22, the chopper was recovered from a place as shown by the 2[nd] accused and as led by him. But all the questions put by the prosecution to PW.14 are to the effect that the police had recovered MO7 as pointed out by Prasad (A3). PW.14 admitted that he had seen accused **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -39- No.3 sitting in a jeep at that time. Therefore it is evident that the prosecution has no consistent case with respect to recovery of MO.7 chopper and the evidence of PW.23 in this regard cannot be relied upon as the sole basis for sustaining the conviction. 23. With respect to MO9 series Iron Rods, the discoveries were based on the alleged disclosure statements of accused Nos.3, 5 and 10. Ext.P20(a) is the alleged disclosure statement made by the 3[rd] accused, based on which one among the Iron Rods was recovered by preparing Ext.P20 mahazar. PW.13 was examined as an attestor to Ext.P20 mahazar. He had supported the prosecution version regarding recovery of one among the Iron Rods in MO.9 series. Another Iron Rod in MO9 series was discovered based on Ext.P21(a) disclosure allegedly made by accused No.5, by preparing Ext.P21 mahazar. PW13 is the witness for the said recovery also. Likewise, the 3[rd] Iron Rod was discovered on the basis of Ext.P33 (a) the alleged disclosure of accused No.10, by preparing Ext.P33 mahazar. The said **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -40- Iron Rod was seen marked further as MO.16 also. The very same iron rod is marked as one among the three Iron Rods in MO.9 series. PW.18 is the witness examined to prove the discovery. But he has not supported the prosecution. More over the recovery mahazar is mistakenly marked as Ext.P28, when the said witness was examined. Further it is to be noticed that each of the Iron Rods were not separately marked with any proper identification. However, since this court is not dealing with any appeals of the accused Nos.3, 5 or 10, we need not express any specific opinion with regard to recovery of MO.9 series Iron Rods. 24. It has come out in evidence that the recovered weapons were sent for chemical analysis, to the Forensic Science Laboratory. Exhibit P36 is the Report of the chemical examination, issued by the Assistant Director of the Forensic Science Laboratory, Thiruvananthapuram. Even though the result of the examination indicated that the weapons contained blood of human origin, there is no evidence to the extent of identifying the group of the blood. **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -41- Therefore, the prosecution has not adduced any clear proof to establish that any of the weapons recovered contained stain of human blood belonging to the group of the deceased or the group of any of the injured persons. Hence the analytical report has also not contributed any acceptable evidence adduced on behalf of the prosecution to sustain the conviction. 25. When the accused were questioned under Section 313 Cr.P.C., the 1[st] and 4[th] accused gave statements that on the date of occurrence they have gone to the Medical College Hospital, Alappuzha, since the 1[st] accused was suffering from an ulcerous wound on his big toe, for collecting report of the biopsy examination conducted. According to them, they went to the house of DW3 Doctor for showing him the biopsy report and at the relevant time they were not present at the scene of occurrence. DW3 Doctor was examined as a defence witness. Exts.D11 to D15 documents were marked through him. Ext.D11 is the 'O.P. Ticket' with respect to the treatment of the 1[st] accused **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -42- at the Medical College Hospital, Alappuzha. The 'O.P. Ticket' is dated 20.8.2002. It would indicate that the 1[st] accused came to the hospital for outpatient consultations on various dates such as 31.8.2002, 1.9.2002, 7.9.2002, etc. Ext.D13 is the 'Pathological Report' issued from the Department of Pathology, Medical College Hospital, Alappuzha, dated 11.9.2002. It would reveal about the analysis conducted on a specimen received at the Department on 31.8.2002. The Report was issued on 11.9.2002. Ext.D12 is the prescription issued by DW3 in his letter head. The said document is dated 22.8.2002. It would indicate that the 1[st] accused was consulted by DW3 on 22.8.2002 and further on 11.9.2002. The endorsement noted on 11.9.2002 is only the prescription of a capsule. DW3 deposed before the court that the 1[st] accused was being treated by him during the relevant time. He further deposed that the 1[st] accused consulted him at his residence on 11.9.2002 and had shown the 'Biopsy Report' to him on that day. But DW3 is not in a position to remember the time **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -43- when the 1[st] accused had consulted him on that day. It is also conceded that he is not maintaining any Register with respect to the consultation of patients at his residence. He has not mentioned anything to the effect that the accused No.4 was accompanying the 1[st] accused at the time of the consultation on 11.9.2002. On an evaluation, the accused could not establish through any convincing evidence about the plea of alibi attempted. The 1[st] accused could not prove specifically beyond any other hypothesis that he was consulting DW3 Doctor at the time when the occurrence took place. But as discussed above, the crucial question is as to whether the prosecution could be able to prove guilt of the accused beyond any reasonable doubt. 26. Learned Senior Counsel appearing for the appellants had pointed out that, consistent version of all the witnesses who sustained injuries in the incident is that, at the time of occurrence many shops situated in the junction therein remained open and many persons in the shops have witnessed the incident. But no independent witnesses from **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -44- the locality was examined in the case, despite the fact that CW6 was cited as an independent eye witness in the charge sheet. It is also pointed out that PWs 6 and 7, who were examined to prove the occurrence, are not persons belonging to the locality and are persons having no chance of witnessing the incident. It is contended that nonexamination of any independent witnesses, despite the testimony of PWs 2 and 3 that many shop owners have witnessed the incident, is an aspect which is detrimental to the prosecution. Non-examination of CW6 without there being any convincing reason is also specifically pointed out. Learned Senior Counsel had placed reliance on various judgments such as **Bhim Singh** v. **Sate of Haryana (AIR 2003 SC 693)** , **Joginder Singh** v. **State of Haryana (2013 KHC 4842** ) and **Raghava Kurup** v. **State of Kerala (AIR 1965 Kerala 44)** to contend that the nonexamination of independent witnesses to prove the occurrence is fatal to the prosecution. **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -45- 27. As far as the present appeals are concerned, which pertains to accused Nos.1, 6 and 7, as already found in the foregoing paragraphs, neither testimony of the ocular witnesses, PW1 to PW3, nor any circumstantial evidence adduced would lead to a clear proof about the guilt of the appellants to sustain a conviction for the offences alleged by the prosecution. As already mentioned, the prosecution case itself was set up on a distorted version with respect to the incident and the very basis of the prosecution case stood shaken to a considerable extent. Further, there is clear failure on the part of the prosecution in establishing a consistent case through the witnesses who sustained injuries in the incident. These aspects are creating suspicious circumstances in the mind of the court with respect to the guilt of the appellants and the appellants are entitled to the benefit of doubt in such situation. No credential evidence with respect to recovery of the weapons allegedly used by accused Nos.1 and 7 could be established by the prosecution, as admissible evidence under Section 27 **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -46- of the Evidence Act. We are constrained to observe that the prosecution could not succeed in proving the true genesis of the incidents, as alleged in the charge. Therefore, we are not persuaded to sustain the conviction and sentence imposed against accused Nos.1, 6 and 7. 28. In the result, above appeals are hereby allowed. The conviction and sentence imposed by the Additional Sessions Court-II, Mavelikkara in SC No.800/2004 against the appellants/accused Nos.1, 6 & 7 namely: (1) Prasanthan, S/o. Vasu, Pulimtharayil House, Ward-V, Pathiyoor Panchayat, Pathiyoor Village, (2) John @ Ponnappan, S/o. Thiruvan, Sreenikethan House, Chennithala Thekkumuri, Thripperumthara Village and (3) Vinu, S/o. Gopi, Kizhakkalummottil House, Pathiyoor Vadakkum Muri, Pathiyoor Village, under Sections 143, 144, 147, 148, 324, 326 and 302 read with Section 149 I.P.C are hereby set aside and the appellants/accused Nos.1, 6 & 7 are acquitted of the said offences. The appellants/accused Nos.1, 6 & 7 are in jail. Therefore, the appellants/accused **Crl. Appeal Nos.2705/2008, 1057/14 & 1351/2014** -47- Nos.1, 6 & 7 shall be released forthwith, if their detention is not required in connection with any other case. The Registry is directed to transmit the gist of this judgment to the Superintendent of the prison concerned immediately, in order to comply with the above direction forthwith. Sd/- **C.K. ABDUL REHIM, JUDGE** . Sd/- **ANIL K. NARENDRAN, JUDGE** . ## **SKV/dsn/AMG/skj/dsn** True copy P.A. to Judge